Consumer Protection Law
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Hi! LegalGems here. I'll do my best to assist you.I can only provide general information, so a follow up consult with a private lawyer is recommended. I have reviewed your question and am composing a response.
9/24 is likely the date the court stamped the documents. You can call the clerk and ask, based on the proof of service filed, the actual date of service to ensure that the proof of service coincides with your date.
The "debtor" is the defendant.
So it's the date stamped and not the date served? I wasn't served until Oct 10th
Often times, a "creditor" will bring an action on an old debt, or on the wrong defendant, in the hopes of getting a default judgment - an automatic judgment entered in plaintiff's favor for the amount asked, since no one shows to defend it.
Generally there is a file date, a service date, and a hearing date.
These are the words it was served on Oct 10th it was served to me. It says I have 30 days from the date of service. There is no hearing date yet.
Here is what's written
A "debtor" can request validation of a debt pursuant to the Fair Debt Collection Practices Act. This requires the creditor to provide the information showing the debt is owing. The statute is quite vague as to what is considered acceptable proof. However, in court the plaintiff has the burden of proof and needs to "prove" the debt by showing signatures, statements, etc.
you are hereby required to appear and defend the complaint filed against you in the above entitled action within 30 days from the date of service of this summons upon you, in case of your failure to do so.
Often, a judge will award attorney fees and costs to the party that is being sued by a plaintiff that has no reasonable grounds for initiating the lawsuit. So it is worthwhile to - in writing- inform creditor that you have no liability for the debt; that you never borrowed this sum from their company. Often times, they will file a voluntary "request for dismissal with prejudice" once they realize the "defendant" is aware of their rights and will appear in order to contest it.
Yes, that is standard language. I assume this is small claims?
According to their website the defendant has 14 days to respond/
My concern was I only got home a few days ago. And was trying to see and from what I read it sounds like the 30 days is from the date I was served. There is no stamp just a date when they did the paperwork
"Once the plaintiff files a claim and serves it on the defendant, the defendant has 14 days to either pay the claim or file an answer and request a hearing. If the defendant does not do one of those things, the plaintiff may ask the court to enter a default judgment against the defendant. Forms and instructions for doing this are available in the forms section of this site."
And the court said ---you are hereby required to appear and defend the complaint filed against you in the above entitled action within 30 days from the date of service of this summons upon you, in case of your failure to d
30 days is usually in general civil.
In small claims the defendant needs to request a hearing.
So the form is wrong?
I don't really have 30 days?
I'm pulling up the form now.
It's confusing what If I hadn't of been home for a month.
The form specifies 14 days:
the United States, talk to a legal advisor about the Servicemembers Civ....
If you weren't home then you would file a motion to vacate judgment based on your absence from state.
I was in California and they served my husband and they describe that on the front
I live in Oregon
I was in California when they served my husband
Yes, they can usually leave it with an adult that is in the residence.
So I'm still confused
Why does it say that I have 30 days from the date of service of this summmons upon you. Wouldn't that mean from the date they served me or someone else?
It doesn't say from the date the paperwork was done?
It means that the date service was effectuated - and that can be serving an adult that would be expected to give the documents to the defendant.
Date of service is what matters, not date of filing; for response purposes.
Are you sure this is small claims, Oregon?
Circuit court in the state of oregon for Douglas county
For the amount I would assume so, but your paperwork is not consistent with the websites.
Just a second please.
Thanks. That's not small claims. http://courts.oregon.gov/Douglas/Pages/criminal.aspx This is a general court.
What is it?
what's the difference?
It depends what branch they filed in. They do have a small claims branch, but it requires 14 day response; not 30.
Between general court and small claims
So I'm out of luck then because it was filed on Sept 13 and I didn't get it until oct 10
The difference is generally cases under $10K are brought in small claims because it is cheaper, quicker etc. However sometimes a plaintiff will bring a case in general in order to rack up attorney fees and intimidate defendant to pay.
No the date of service is still controlling, not the filing date.
Okay that's where I'm getting confused
What is the date of service?
How do they determine that
The date of service is the date the individual received the paperwork (or the paperwork was received by a responsible person at the residence). The plaintiff must file attest, under oath, that on such and such date, service was effectuated.
So it's from the date he was served afterall.
Here is an example of a proof of service that is filed with the court: http://courts.oregon.gov/Douglas/docs/smallclaims/pos_cert_mail_sc-14-new.pdf
Yes, the filing date is the date the plaintiff filed the papers; the service date is the date of service as indicated on the proof of service.
I would suggest you call the clerk to verify which department this is in, as it would generally be in small claims, but small claims has a 14 day response time.
Okay so they sent us a letter saying we were served and who they served in description.
Here is "small claims in a nutshell": http://courts.oregon.gov/Douglas/docs/smallclaims/small_claims_in_a_nutshell_10-11.pdf
they mailed us that
They say the date was 10/10/2013 time 10:45 then they go on to describe my husband
That was probably a copy of this form: http://courts.oregon.gov/Douglas/docs/smallclaims/pos_1st_class_mail_after_sub_service_sc-14as-new.pdf
So one more time.. We have 14 days from the 10th even though it says 30
It clearly states 30 on the notice to appear and nowhere does it say 14 days,.
That's why I'm confused. All the small claims dox I'm looking at say 14 days.
This one says. (30) days
I wish I could scan it but it's so late.
Which is why I'm thinking it's not small claims.
It was filed in Douglas County Trail courts
It's from an Attorney
Did you review the information I sent you above - the various links? For small claims, which is cases under $10K, the response time is 14 days.
suttell & Hammer P.S.
it just took me to some forms
it's only 1100
I would need to see the document but I am not able to review documents on this site unfortunately. For general civil, typically the response time is 30 days; for small claims it is 14 (the idea is to expedite it). Attorneys generally are not allowed to represent in small claims, absent special court approval.
If they want a jury trial they can bring it in general civil.
regardless of the amount.
So it could be a jury trial?
If it is in general civil it is best to hire an attorney because the process is very complicated. A missed date can result in a default against you. There is a discovery process, a jury selection process, a case management conference, and several other deadlines that need to be met.
For an overview you can see: http://courts.oregon.gov/OJD/docs/selfhelp/civiltrialbrochurefinal2.pdf
what is a default against me>
The judge enters a judgment against the defendant because of a missed deadline.
Not good. Because then there is a whole process that you would need to request vacating the judgment -very time consuming and expensive.
how can they do that for something I don't owe?
I don't even rememer this credit card
says it was from Bank one
never heard of them
Unfortunately they count on people dismissing it and just not showing up; many creditors successfully get default judgments this way.
I'm going to show up.
But wasn't sure where to go since there is no date set
Is there a case #?
I would call the clerk, give her the case # XXXXX ask which division this is.
Then you will know for certain if it is small claims or civil. You can ask if a hearing has been scheduled.
Yes, I don't have access to the court system. You would need to call the clerk.
How common is it for them to go civil for a credit card?
It is not unheard of. It complicates matters and some creditors use it as a strategy.
Some people will get overwhelmed and just walk away.
Okay. Well I'll call tomorrow and see what I can find out.
One more question. how do they make you pay?
If you don't have a job and are making no money?
http://courts.oregon.gov/Douglas/docs/smallclaims/small_claims_court_manual_rev_10-11.pdf - in case it is small claims, this is the info you will need. If it's general civil, http://courts.oregon.gov/OJD/docs/selfhelp/civiltrialbrochurefinal2.pdf If it is the latter, I would strongly urge you to contact an attorney.
I can't really afford that.
I am not working.
So I have no way to pay anyway.
But my credit is good and that part is awful.
I'm sorry to hear that. That makes this all the more frustrating.
Can they send you to jail.
Are you a senior?
yes I'm 61
Not typically for credit card charges.
Just a sec please.
I assume you are in Douglas county?
another moment please.
Make sure the number went through; sometimes the sensors block it out
This is a legal service that is a non profit. It offers SOME services for seniors for free. I'm not sure what they are. If this is not a small claims case, I would urge you to contact them to see if they can assist.
Okay thank you.
I'll call tomorrow to the court house and try to find out what kind this is
Thank you for your help
You are welcome. If you can find an attorney to draft a letter stating that the debt is not yours they may very well dismiss with prejudice - which would be very good because it would make the problem go away. That's the thing I was talking about earlier- the Fair Debt Collection Practices Act. You are very welcome. I hope it all works out for you. Creditors can be unethical to say the least.
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